Bill Marler, Food Safety Litigator

Apr 14 2009

Bill Marler knows food poisoning.

In 1993, as a Seattle trial lawyer, he was
hired to litigate against the fast-food restaurant chain Jack in the Box, whose
E. coli-contaminated hamburgers had killed four children. Since then, he’s
worked on nearly every major case of food-borne illness in the U.S., including
the current salmonella-in-peanut-butter scandal.

Thanks for agreeing to chat. I’m not going to
be as hostile as some interviewers.

Just yesterday I was at a National Meat
Association meeting to give a speech. And there were 400 people there. And they
introduced me, and nobody clapped.

I walked up and stood there for a while
without saying anything, so there was this kind of awkward silence. And then I
said, “You may now clap.” And they clapped.

The reality is that most people don’t like
lawyers, because usually when you’re dealing with a lawyer, there’s something .
. . amiss, one way or another. But, you know, I’ve got a thick skin.

How did you get your start in food-safety
litigation?

The 1993 Jack in the Box case was really the
first major food-borne illness outbreak that got the public’s attention. There
were four deaths, and there were about 50 kids who suffered hemolytic uremic
syndrome, so it was a significant outbreak. I wound up representing a number of
the very sick kids, and eventually was the lead counsel for the vast majority
of the plaintiffs in the entire litigation.

Did you have experience with that kind of
litigation before?

No, not at all. At the time, I’d been a lawyer
for five years. I wound up getting the cases and just working really hard to
understand the medicine. And when it ended, I thought I’d just go back to being
a trial lawyer, representing, you know, victims of whatever.

It didn’t work out that way. The Odwalla case
happened right after that, and then more and more food-borne illness cases. I
kept getting referrals from other lawyers around the country.

In 1998, I started Marler Clark to
specifically focus on food-borne illness litigation. In many respects, it’s
been sort of unfortunate that it’s been quite successful.

How true. Is it my imagination, or has the
pace of food-safety outbreaks been increasing over the past several years?

If you look at the Centers for Disease Control
figures for outbreaks, you can see that they’ve stayed relatively stable, but
at a very, very high level. So I’m not sure if we’re really seeing a lot more
outbreaks per se, or if we’re just figuring them out more. We have a lot more
technology to figure them out now.

Do you think the media is more fascinated by
food-borne outbreaks these days?

Some of it is admittedly over the top. I was
at the hearings last week with the peanut-butter fellow and the media chased
him down the street, kinda like Britney Spears. So I certainly think that it
can be overdone.

On the other hand, I think the media reflects
how outraged the public feels about living in a First World country and having
our food poison and kill us.

This peanut-butter case is a great example of
the fact that our food supply has become so intertwined and so massive that one
small bad operator — the Peanut Corporation of America, which makes a very
small percentage of peanuts, peanut paste, and peanut product — has now caused
the largest food-borne illness outbreak in a long time and the largest food
recall in U.S. history.

I think that’s also another way to answer the
question of whether we’re seeing more [outbreaks]. I think what we’re in part
seeing is just more outbreaks tied to large production.

Do you think that the globalization and
standardization of our food supply is inevitable? And do you think that these
food-borne illness outbreaks will cause people to rethink the way we get our
food?

I’m less concerned about globalization as it
relates to food safety, primarily because in 15 years of doing food-poisoning
cases, I can count on one hand the times a foreign-made product has poisoned
us. U.S. corporations do a marvelous job of poisoning our own citizens.

But as our food supply goes global — as
consumers want tomatoes all year round — the chain gets stretched farther and
farther. And you continue to have potential problems like what happened at the
Peanut Corporation of America, where one bad actor ruins the whole production
chain.

Now, I and my family try to eat as locally and
as regionally as possible, but it is certainly a pretty difficult thing to do.
And with the population ever increasing, I have a really difficult time trying
to figure out how we can all eat within 100 miles.

I wish I had a great answer, but I’m not
positive that shortening the food chain and having everything grown locally is
necessarily going to give you safer food. It could. It may be that the
outbreaks wouldn’t be quite so large. But I just don’t know what the answer is.

In your list of food-safety challenges for
2009, you question the safety of local food. How big a food-safety threat do
you think things like farmers’ markets pose?

My concern is that there’s a sense that
somehow, if you’re able to look a farmer in the eye, that farmer’s products are
magically not going to poison you. And that’s just not the case.

Now if you ask me, “Bill, how many times have
you had a case where people have been poisoned by food at farmers’ markets?”
the answer is, I’ve never had one. But just like everything else, the larger
the demand is, the more likely it is that there are going to be more problems.

Clearly, it’s not a big problem. My concern is
that we don’t [forget] that all food can make you sick, whether you know the
farmer or not. That was really my point, not that I don’t like small local
farmers.

I live on Bainbridge Island. We have an
organic grocery store on the island. I drove by one day and there was a sign
that said “Raw milk for sale.” I walked in and I said, “Hi, my name is Bill
Marler, and you just don’t want to do that.”

You’re not in favor of raw milk?

Um, you know, I’m not. And it’s not because
that’s what I had to drink when I was a kid, although that is what I had to
drink when I was a kid. My parents were sort of wannabe back-to-nature people,
so we did the whole hobby farm, trying to be self-sufficient.

My concern with raw milk is that people have
this desire to go back to the 1940s and 1950s and live a simpler life, which is
not such a bad idea in many respects. The problem is that the bacteria and
viruses that exist now are way different than what existed then. E. coli 0157
and the shiga-toxin-producing E. coli that can kill us didn’t even exist until
the late 1970s and early 1980s, and they’re changing all the time.

So when people say, “I used to drink raw milk
all the time when I was a kid,” well, the raw milk you were drinking as a kid
40 years ago had way different risks than the raw milk that you potentially
drink today.

And I look at it from the perspective of
representing children who have had raw milk and their parents thought that they
were giving their kids a healthful product that had been sort of sold to them
as a product that could kill bacteria, not contain bacteria. And these kids
have had pretty severe hemolytic uremic syndrome.

So my perspective on it is, there’s no real
convincing evidence that raw milk is so much better for you that it’s worth the
risk of feeding it to your children.

How has your line of work affected your own
food choices?

It probably has impacted less what I eat and
more what my kids eat. My children, who are now 16, 13, and 9, have never had a
hamburger. Never. And we’re very, very careful about things like sprouts and
raw products, although we try very hard to get local vegetables and local
fruits and wash them thoroughly.

I probably think too much about the foods we
eat, primarily because outbreaks happen so often. I think I’ve just had too
much experience with the negative side of food.

Who do you think has the biggest
responsibility in preventing food-borne illness outbreaks: industry,
government, or consumers?

When I was at the meat meeting, repeatedly
people would say, “If only people would cook the meat.” And of course, my
response to that was, “If only you didn’t put cow shit in it, people wouldn’t
have to worry about it.”

I’ve also been very, very disappointed in
government for the last dozen years. For many years, you couldn’t get a
hearing. Now you can get hearings, but they never seem to do anything.
Government needs to fund regulators sufficiently for them to help prevent
outbreaks. But Congress and the bureaucrats seem more intent on having a great
press conference and saying that they’re going to make a new food-safety agency
or something. And then they don’t do anything, and a year later, another outbreak
happens, and they say the same thing over and over and over again.

But I also think consumers tend to be way too
passive. Passive not only in their knowledge of food safety and food risks, but
also in holding corporations and politicians accountable for making our food
supply safer.

Ultimately I believe it’s the consumer’s
responsibility. But obviously it’s a shared responsibility. I’ve seen great
corporations that do a marvelous job of not poisoning their customers. I seldom
get to spend much time with them because I’m never suing them.

What would you like to see the new
administration enact as the top policy changes for food safety?

The first thing I would do is increase our
ability to surveil pathogen outbreaks. Look at the peanut-butter case; it
really started in late August or early September, but it wasn’t figured out or
announced until after the first of the year.

In many of these outbreaks, anywhere between
20 and 40 times the number of people who are counted actually do get sick. If
we were doing more rigorous surveillance at ERs and pediatrician offices and
primary-care providers, if local and state health authorities were gathering
that information in a timely way and getting that information to the CDC, you’d
basically be taking an outbreak that starts in August and figuring it out in
September or October at the latest. You’d figure out the outbreak sooner, you’d
figure out who the producer was sooner, and you’d save people.

And figuring out outbreaks sooner means that
you’re more likely to be able to pinpoint a particular supplier sooner, so you
don’t have the problem like you had last year with salmonella in produce: “It’s
tomatoes — oh, never mind, it’s peppers!” And the tomato industry loses
hundreds of millions of dollars. Putting an infrastructure in place for
reporting outbreaks would be a good thing.

My other major move on food safety would be to
have all food manufacturers have some sort of hazard-analysis, critical-control
type plan. And they should do environmental and end-product testing. Everyone
should be required to do it. And all the test results should be completely
transparent, so the government doesn’t have to ask for them and the companies
that are having repeated problems can be helped.

That, however, would require more funding for
the FDA and the Food Safety and Inspection Service. It’s not going to be an
easy thing. But hey, there’s money floating around.

Stimulus money?

Yeah! Come on, stimulate food safety!

Marler Clark, The Food Safety Law Firm, is the nation’s leading law firm representing victims of foodborne illness outbreaks.